Watson v. Thompson

Rodney Lynn Watson, Petitioner, v. Gerald W Thompson, Respondent.

No. CV-19-00405-TUC-RM

United States District Court, D. Arizona

September 29, 2022

ORDER

Rosemary Marquez, United States District Judge.

On August 15, 2022, Magistrate Judge Jacqueline Rateau issued a Report and Recommendation (“R&R”) (Doc. 36) recommending that this Court dismiss Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C § 2254 (Doc. 1). Following an extension of time (Doc 38), Petitioner filed an Objection to the Report and Recommendation (Doc. 39).

I. Procedural History^[1]

The Petition seeks relief with respect to three separate criminal cases: (1) Arizona Superior Court, Cochise County, Case No. 2010-00828 (“Credit Card Theft Case”); Arizona Superior Court, Cochise County, Case No. 2012-00215 (“FTA Case”) and (3) Arizona Superior Court, Cochise County, Case No. 2012-00253 (“Marijuana Transportation Case”).

a. Credit Card Theft Case

Petitioner was charged with and convicted after a jury trial of two counts of credit card theft and one count of unlawful possession of methamphetamine and was sentenced to concurrent prison terms, the longest of which is 11 years. On direct appeal, Petitioner's counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), stating that counsel had found no colorable appellate claims to raise. Petitioner failed to file a pro se supplemental brief, and the appeals court affirmed Petitioner's convictions and sentences on April 10, 2014. Petitioner failed to seek Arizona Supreme Court review, and the appellate court's mandate issued on May 16, 2014.

Meanwhile, in May 2014 before his direct appeal concluded, Petitioner filed a timely notice of post-conviction relief (“PCR”). Petitioner's counsel subsequently filed a notice of completion of PCR review, stating that counsel had found no colorable PCR claims to raise. Petitioner failed to file a pro se supplemental PCR petition, and on January 2, 2015, the trial court summarily denied post-conviction relief. Petitioner failed to seek appellate review, and his PCR proceeding concluded on February 2, 2015--31 days after he could have timely sought review by the Arizona Court of Appeals.

In January 2019, Petitioner attempted to initiate a second PCR proceeding by requesting a modification of his sentences in his Credit Card Theft Case (and the FTA Case and Marijuana Transportation Case), which the trial court summarily denied on May 7, 2019. Petitioner failed to seek appellate review of the May 7, 2019 ruling.

b. FTA Case

Petitioner was charged with and convicted after a jury trial of two counts of felony failure to appear in the first degree and was sentenced as a repetitive offender to concurrent 7.5-year prison terms. On direct appeal, Petitioner's counsel argued that Petitioner's failure to appear at the pretrial and trial proceedings did not constitute “public offense[s]” under Arizona law, the substantive failure-to-appear statute is otherwise unconstitutionally vague, and there was insufficient evidence to sustain the convictions. On July 30, 2014, the Arizona Court of Appeals found Petitioner's claims meritless and affirmed his convictions and sentences. Petitioner failed to seek review by the Arizona Supreme Court, and the mandate issued on September 12, 2014.

Meanwhile, in September 2014 before his direct appeal concluded, Petitioner filed a timely PCR notice. Petitioner's counsel subsequently filed a notice of completion of PCR review, stating that counsel had found no colorable PCR claims to raise. Petitioner then filed a pro se supplemental PCR petition raising one claim: that trial counsel in his Credit Card Theft Case had been ineffective in allegedly advising him not to appear at the pretrial and trial proceedings in that case, resulting in his convictions in the FTA Case. Following an evidentiary hearing, the trial court found in a decision issued on October 8, 2015, that trial counsel in the prior case had not advised Petitioner to absent himself from his pretrial and trial proceedings, found that counsel had therefore not been ineffective on this ground, and denied relief. Petitioner did not seek appellate review, and the PCR proceeding concluded on November 9, 2015--32 days after Petitioner could have timely sought review by the Arizona Court of Appeals.

c. Marijuana Transportation Case

Petitioner was charged with and convicted after a jury trial of one count of unlawful transportation of marijuana for sale and sentenced as a repetitive offender to an 18.75-year prison term. On direct appeal, Petitioner's counsel filed an Anders brief stating that counsel had found no colorable appellate claims to raise. Petitioner failed to file a pro se supplemental brief, and the appellate court affirmed his convictions and sentences on March 14, 2014. Petitioner did not seek review by the Arizona Supreme Court, and the mandate issued on May 7, 2014.

Meanwhile, before his direct appeal concluded, Petitioner filed a timely PCR notice. Petitioner's counsel subsequently filed a notice of completion of PCR review, stating that counsel had found no colorable PCR claims to raise. Petitioner subsequently filed a pro se supplemental PCR petition challenging the sufficiency of the evidence on the marijuana-transportation conviction, claiming that trial counsel had been ineffective in failing to seek removal of a purportedly biased juror, and alleging that appellate counsel had been ineffective in failing to challenge the juror's alleged lack of partiality on direct appeal.

In an order issued on June 30, 2015, the trial court summarily denied postconviction relief, finding the sufficiency-of-the-evidence claim procedurally precluded, finding that the record was devoid of any suggestion that a juror had been biased or prejudiced against Petitioner, and finding counsel had not been ineffective. Petitioner sought reconsideration on his juror-bias-based ineffective-assistance-of-counsel claims, which the trial court summarily denied on July 14, 2015. Petitioner failed to seek appellate review and the PCR proceeding concluded on July 29, 2015--15 days after Petitioner could have timely sought review by the Arizona Court of Appeals from the denial of his request for reconsideration/rehearing.

On August 14, 2019, Petitioner filed the instant Petition. (Doc. 1.)

II. Report and Recommendation

Magistrate Judge Rateau's R&R recommends dismissing the Petition as untimely in its entirety. The R&R concludes that “no non-tolled time elapsed prior to the conclusion of Petitioner's first PCR proceeding” in 2015, for any of Petitioner's three criminal cases. (Doc. 36 at 6.) The R&R further concludes that more than three years elapsed between “the conclusion of the first PCR proceeding in 2015 in each case and the initiation of the second PCR proceeding in January 2019 in each case.” (Id.) Thus, the limitation period expired between the first PCR proceedings in 2015 and the second PCR proceedings in 2019. (Id.); see Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005) (untimely state postconviction petitions do not toll statute of limitations). Thus, the R&R finds that, unless Petitioner can establish a basis for tolling the limitations period, the Petition is untimely. (Id. at 6-7.)

Upon considering Petitioner's argument with respect to equitable tolling, the R&R finds that Petitioner has not met his burden to establish that equitable tolling applies to his Petition. (Id. at 7-11.) The R&R finds that, according to Petitioner's own statements, he began working on his habeas petition in 2018, years after the limitations period expired, which indicates “a lack of diligent pursuit.” (Id. at 7); see also Johnson v. United States, 544 U.S. 295, 311 (2005) (refusing to apply equitable tolling where petitioner waited 21 months after expiration of the AEDPA limitation to file); Lakey v. Hickman, 633 F.3d 782, 787 (9th Cir. 2011) (141-delay in filing petition indicates that Petitioner “did not diligently pursue his rights”).

Because the R&R concludes that Petitioner did not diligently pursue his rights, it finds it need not reach the question of whether he has established an extraordinary circumstance that prevented him from timely filing his Petition, since a petitioner seeking equitable tolling must establish both factors. (Id. at 8.) Nevertheless, the R&R considers Petitioner's arguments that (1) he was ignorant of the law and (2) his “diminished capacity and handicaps” justify the application of equitable tolling, based on an incompetency determination in one of his state court cases in 2012. (Id. at 8-10.) The R&R finds that ignorance of the law is not an extraordinary circumstance justifying equitable tolling. (Id. at 8-9.) Addressing Petitioner's argument that his mental incompetency should toll the limitation period, the R&R finds that Petitioner admits that his 2012 incompetency determination was overruled in state court, and that he failed to appeal this decision. (Id. at 10.) The R&R further notes that, after Petitioner's postconviction counsel filed an Anders brief, Petitioner had an opportunity to raise issues on appeal pro se and failed to do so. (Id.) The competency issue was also not raised in any PCR petitions. (Id.) The R&R further notes that Petitioner has not established a causal connection between the 2012 incompetency determination and the delay in filing his habeas petition. (Id.) Thus, the R&R concludes that no extraordinary circumstance beyond Petitioner's control prevented him from timely filing the instant Petition. (Id. at 11.)^[2]

III. Standard of Review

A district judge must “make a de novo determination of those portions” of a magistrate judge's “report or specified proposed findings or recommendations to which...